IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2018
ERIC GYASIE @ TABOTABO -(Appellant)
THE REPUBLIC- (Respondent)
DATE: 25TH JULY, 2018
CIVIL APPEAL NO: H1/4/2018
JUDGES: JUSTICE IRENE C. LARBI (MRS) J.A. (PRESIDING), JUSTICE L. L. MENSAH J.A., JUSTICE ANGELINA M. DOMAKYAAREH (MRS) J.A.
DANIEL ARTHUR FOR APPELLANT/APPELLANT. NANA
AISHA SALIFU FOR RESPONDENT/RESPONDENT
LAWRENCE L. MENSAH, J.A.
This is an appeal launched by the Appellant who was convicted on his own plea for the offences of causing unlawful harm and robbery by the Circuit Court, Cape Coast presided over by Her Honour Florence Kai Otu on 30th November 2011 contrary to sections 69 and 149 respectively of the Criminal Offences Act, 1960, Act 29. The Appellant was sentenced to a term of four years and twenty-five years respectively. Aggrieved by the said sentence the Appellant appealed to the High Court, Cape Coast, presided over by Mustapha J. The learned High Court Judge allowed the appeal in part and reduced the sentences from 25 years IHL to 20 years IHL. Still aggrieved by the reduction of the sentence to only 20 years, he appealed further to this court.
The facts which led to this appeal go like this: On 21st November 2011, the Appellant a driver called the complainant who was a taxi driver working at Assin Fosu on his cell phone and hired the taxi driver’s services from Assin Fosu to Assin Juaso. The complainant responded to the Appellant’s call and drove to the said location at Assin Juaso and from there to Akonfudi. At Akonfudi the Appellant told the complainant that the person whom he had come to see had moved to a location around Okomfo Kyeremang shrine. Complainant drove the vehicle towards that direction and at a spot near the Assin Akonfudi Jehovah’s Witnesses Camp, the Appellant told the complainant to stop, and ordered him to hand over the ignition key of the vehicle to him, failing which he would harm him. The complainant refused to hand over the key and shouted for help. This infuriated the Appellant who pulled out a cutlass which he had hidden in his trousers and inflicted deep wounds on the left hand of the complainant. Having received the grievous bodily harm, the complainant fled from the taxi and the Appellant took over control of the vehicle and sped off. The Appellant sensing that he might be pursued by the police and arrested, he removed the car tape, the cell phone of the complainant and a cash of GH¢28.00 being the sale for the day and abandoned the taxi in between Akenkaso and Akim Aperade. The Appellant was subsequently arrested by the police with the items. The complainant was admitted at the Assin Fosu hospital on the day of the robbery and was discharged on 24th November 2011.
Grounds of Appeal:
The sole ground of the appeal is that the sentence of 20 years IHL is excessive in the light of the fact that the Appellant is a first time offender and that the exhibits were retrieved and handed over to the complainant.
From the ground of appeal as aforementioned, this appeal is solely for mitigation of sentence which does not bear on the guilt of the Appellant. This is because the Appellant had pleaded guilty simpliciter.
The main thrust of counsel’s argument in his submission is that the 20 years IHL imposed by the High Court “is excessive in the light of the fact that the Appellant is a first time offender and that the exhibits were retrieved and handed over to the complainant”.
In his submission, the learned Appellant’s counsel argued that in passing sentence, factors such as the gravity of the offence, the circumstances of the offender, age of the offender and whether or not the offender is known to the law, are to be considered by the judge. Counsel submitted that where the aforementioned mitigation factors are strong, the judge may give a minimum sentence. Counsel refers to the case of Impraim vs. The Republic (1991) 2 GLR 39 in support of his argument.
A further submission of the Appellant is that at the time of the crime, Appellant was only a twenty-eight year old man. And his plea of guilty simpliciter showed that he had appreciated the gravity of the offence; he was remorseful and he did not waste the time of the court. Counsel supported his submission with the case of Kamil v. The Republic (2011) 30 GMJI SC, Dontoh v. The State (1967) GLR 280 at 282 and Haruna v. Republic (1980) GLR 189.
These cases, inter alia, held that sentencing is within the discretion of the trial judge. Further where a substantial portion of the stolen article is retrieved and the accused is a young person, and is remorseful of his crime, these should bear on the sentence regime of the trial court. Counsel finally contended that in this instant appeal, there are a number of mitigating circumstances which favour the Appellant, such as he being a first offender , his youthful age and plea of leniency, all of which point to the fact that the Appellant’s sentence be reduced to the minimum of fifteen years from the twenty years handed to him by the appellate High Court Judge.
In her reaction, the learned State Attorney called for the sentence not to be disturbed because same is appropriate, as the sentence is not harsh or excessive. Counsel submitted that the argument by Appellant that he is a first time offender is misplaced, because the Appellant’s counsel did not advert his mind to the gravity of the offence and how abhorrent it was. Reproducing sections of the Criminal Offences Act 1960, Act 29 and the Criminal Procedure and Other Offences Act, 1960 Act 30, counsel for the Republic contended that an accused person who wishes to take advantage of his status as a first offender to mitigate his sentence must have acted as such. He supported his argument with the case of Frimpong alias Iboman v. The Republic (2012) 1 SCGLR 297 at 328 per Dotse JSC.
Counsel further contended that given the gravity and nature of the offence in this instant case, the Appellant had divested himself of any lenient consideration and that mitigating factors should not inure to Appellant’s benefit.
Counsel referred to several cases in which the courts consider when imposing sentence such as the scenario in the case of Kwashie v. The Republic (1971) 1 GLR 488 at 493 and the discretion used by the court such as in the case of Komegbe v. The Republic (1975) 2 GLR 170 at 173; Impraim v. The Republic (supra); Apaloo v. The Republic (1975) 1 GLR and Amaniapong v. The Republic (2015) 80 GMJ 105.
We have given consideration to the stand taken against the 20 years IHL of Appellant by virtue of the Appellant being a first offender and the fact that the exhibits were retrieved and handed over to the complainant. We have also considered the arguments of the counsel for the Republic to persuade us not to disturb the lower appellate court’s reduction of the trial Circuit Court’s 25 years IHL to 20 years. As the one calling for reduction of the sentence, the onus lies on the Appellant to back his argument that as a first time offender and the fact that the exhibits taken by the Appellant has been retrieved, his sentence must be reduced.
In the first place, we must consider the context in which to place the argument that the Appellant in this appeal is a first time offender. This term “first time offender” or “first offender” is usually used for a person with no previous conviction by a criminal court. However this will depend on the type of crime which had been committed. Indeed this notion of first offender does not apply in all crimes. It applies more particularly to misdemeanour and second degree offences such as assault, stealing of minor sums or articles etc. It does not apply to an offence fixed in law such as murder which attracts the death penalty. It also does not apply to serious crimes such as robbery and other crimes which are aggravated in nature and their minimum sentences fixed by law.
In his submission as aforementioned, the learned Appellant’s counsel seems to be carried away by the fact that the Appellant was said to be a first offender. This however does not mean that the Appellant would have a reprieve under the tag of a first time offender. This brings us to take a look at section 149 of the Criminal Offences Act, 1960 Act 29 as amended by Act 646 which states as follows:-
Whoever commits robbery is guilty of an offence and shall be liable, upon conviction on trial summarily or on indictment, to imprisonment for a term of not less than ten years, and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years.
In determining appropriate sentence to impose on a conviction for robbery, a court of law is under obligation to weigh all the aggravating factors and balance same with any mitigating and extenuating factors which may present itself through the facts and mass of evidence which unfolded in the course of the trial. The aggravating factors include the plan and execution of the robbery; the amount of force used by the accused; the amount or degree of injury inflicted by the perpetrator on the victim; whether or not the locus of the attack on the victim was in an isolated or remote area. Consideration must also be given to the time of the offence, such as night, day, group or gang attack; whether the attack was on a vulnerable person like age etc. or dehumanizing actions. The court must also consider the mitigating factors such as less or no injury, young offender, spur of the moment offence, single offender etc.
In the case of Howe v. The Republic (2013-2014) 2 SCGLR 1444, the Supreme Court unanimously dismissed an appeal against conviction for robbery and by a majority decision of four to one against sentence. The Court affirmed the decision of the Court of Appeal which also had affirmed the 45 years sentence handed to the appellant by the trial court. Further, the Supreme Court took into consideration the fact that under section 149(1) of the Criminal Offences Act, Act 29 as amended by Act 646, where the offence is committed by the use of offensive weapon or offensive missile, the offender, upon conviction, must be liable to imprisonment for a term of not less than 15 years. The majority was satisfied that though the 45 years imprisonment was far and above the minimum of 15 years under the Act “weighing the aggravating factors against the mitigating factors, both the trial High Court and the Court of Appeal had dealt adequately in the sentence meted out to the Appellant”.
The majority went on to say that
In this context, we are not determining how we would have exercised our discretion in the given situation. We are considering whether given the wide spectrum of the discretion at the trial judge’s disposal, he exercised it within the parameters of the law. We are satisfied that the exercise was properly conducted and would, in the circumstances, affirm the sentence of 45 years’ imprisonment with hard labour (our emphasis).
It is to be mentioned in this instant case that in Howe v. Republic (supra), though the issue of whether or not the Appellant was known as a first offender was not raised and considered by all the three hierarchies of the superior courts, it is presumed that the Appellant in that case was a first time offender. It is clear that it is not in all cases where an accused is a first offender that the court would impose a lenient sentence on him. The court will have to consider whether or not the Appellant committed the crime under trying circumstances, or he was a novice or an innocent person dragged into the crime in a situation where he could even elicit some sympathy. Where however a first offender commits a crime which was well planned and executed with sophistication, then he would not benefit from being tagged as a first offender.
The Supreme Court makes a pronouncement on the first time offender in the case of Frimpong alias Iboman v. The Republic (supra) at 328 per Dotse JSC.: aforementioned, the learned Jurist has this to say:
notwithstanding the general principle that first offenders should be treated leniently when sentence is being imposed, the measuring rod or standard in any circumstance is the offence-creating statute and the punishment provided therein ... the court will have to consider whether the first offender indeed acted as a first offender, i.e. a novice. This can be deduced from the type of crime committed, the circumstances under which the crime was committed and the casualties if any. Therefore if a first offender commits a serious crime like robbery, which is a first degree felony, then it is to be presumed that the first offender himself has divested himself of any lenient considerations.
In the instant case, we have to look at how the robbery was perpetrated by the Appellant. As submitted by the learned counsel for the Republic, the Appellant lured the complainant under the guise of hiring his services from Assin Juaso to Assin Akonfudi by calling him on his cell phone. What this means is that the Appellant planned the robbery well in advance. When the victim came he pretended to be going to visit a friend at Assin Akonfudi from Assin Juaso where he was picked. On reaching Akonfudi as aforementioned in the presentation of the facts, the Appellant told complainant that his friend whom he had come to visit had relocated to Okomfo Kyeremang shrine. It was while complainant moved the car and was innocently driving Appellant towards the shrine direction that the Appellant carried his diabolical plan into execution. The third stage was to order the complainant to stop the car and surrender the key to him at a spot near Assin Akonfudi Jehovah’s Witnesses camp. When the complainant refused to surrender the key, and shouted for help, the Appellant pulled out a cutlass which he had hidden in his trousers and inflicted deep wounds on the left hand of complainant. Complainant abandoned the taxi and fled, whereupon the Appellant jumped into the taxi and sped off. The fifth in the series of a well rehearsed and sophisticated plot, finds itself in how the Appellant sensing that he might be pursued by the police, took his victim’s cell phone, removed the car tape, and the sum of ¢28.00. He then abandoned the taxi at a spot between Akenkaso and Akim Aperade. He was however subsequently arrested by the police with the items.
From the chronicle of the events aforementioned, the Appellant was not an innocent first time offender, but a veritable expert in a crime he had professionally planned and executed to perfection. The Appellant unfortunately had graduated from the lowly rung of the criminal ladder into the highest level. By this, he has taken himself out of the tag of a first time offender.
From the case of Howe v. The Republic (supra) where the Supreme Court confirmed a 45 years sentence of the trial court and Court of Appeal and Frimpong alias Iboman v. The Republic (supra), where the highest court reduced a 65 years sentence to 30 years, it is clear that the minimum of 15 years imprisonment where an offensive weapon was used has never been a bench mark for sentencing robbery perpetrators. On the contrary the sentences were sometimes twice or even three times the 15 years minimum as is the appeal in the Howe case. What this means is that the sentence were influenced by the facts and circumstances of each case as decided by the trial court by the use of his discretion. The appellate courts must be slow in disturbing such sentencing of grievous crime unless the sentence is outrageously high and out of proportion to the facts and circumstances of the case. The sentencing authority rests exclusively with the trial judge. As Gbadegbe JSC puts it in the case of Joel Mejia Duarte Moise v. The Republic (2017) 110 GMJ 243 at page 247:
We are of the opinion that if the matters raised in the grounds of appeal before us were to be legitimate factors that might weigh on the minds of appellate courts in determining the question of sentence to be passed on a convicted person, it would undermine the settled practice of courts that the question is one for the trial court and undermine the authority of trial courts who are primarily seised with the relevant factors that can be utilized in sentencing. But that is not all. It would also while seeking to exercise an appellate jurisdiction, provide appellate courts with matters outside the scope of trial courts which can be taken into account in passing sentence and render the nature of the appellate jurisdiction, quite unconcerned with the facts and circumstances which might have formed the basis of the sentence imposed on an appellant.
Although the subject-matter of the above appeal is drug-related, the pronouncement of Gbadegbe JSC on the need for appellate judges to be circumspect in tampering with the sentencing power of trial judges is relevant to the instant case. We are not unaware that in this instant case, the sentence appealed against is from the appellate jurisdiction of the High Court.
In a further submission of learned Appellant’s counsel, he referred as aforementioned, to the case of Impraim v. The Republic (supra). In that case, it is held inter alia, that in passing sentence, factors like the gravity of the offence, the circumstances of the offender, age of the offender and whether or not the accused is known to the law or not ought to be considered. And that where the mitigating factors are strong, the judge may give a minimum sentence. Counsel contended that the Appellant in the instant case was a 28 years old young man.
As aforementioned, the learned Appellant’s counsel referred to hosts of cases such as Kamil v. The Republic (supra); Dontoh vs. The State (supra) and Haruna v. The Republic (supra). Unfortunately, there is nothing in these cases which can avail or vindicate the argument of the Appellant that “the 20 years IHL is excessive in the light of the fact that the Appellant is a first time offender and that the exhibits were retrieved and handed over to the complainant was harsh and excessive”. As aforementioned, the fate of the Appellant had been sealed by section 149 of Act 29 as amended by Act 646. Under this provision, the trial court had no choice but to impose the 15 years which he was mandated to impose. This is because the Appellant used a cutlass, an offensive weapon. The difference of that 15 years which he increased to 25 years was her discretion to increase, was graciously reduced to 20 years by the appellate High Court Judge whose judgment Appellant appealed against.
In considering whether or not to mitigate the sentence imposed on an Appellant, as in this instant case in an offence such as robbery, we have to see what facts determined the length of sentence as copiously isolated above. This includes the intrinsic seriousness of the offence; the degree of strong disapproval by law-abiding citizens of that particular crime; the way and manner the plan was executed; the prevalence of the crime within a particular locality where the offence took place or in the country as a whole; the aggravating and mitigating circumstances such as youth, good character and the manner in which the offence was committed. These were the six grounds the Court of Appeal considered when dealing with the appeal in the case of Kwashie v. The Republic (supra). These grounds have been affirmed by the Supreme Court in Kamil v. The Republic (supra) holding 4 and Frimpong alias Iboman v The Republic (supra).
Finally in the case of Amaniapong v. The Republic (supra) Rose Owusu JSC in delivering the lead judgment in dismissing an appeal against a sentence of 30 years imprisonment at page 127 has this to say:
Punishment is justifiable as a deterrent not only to the criminal himself, but also, even more importantly, to those who may have similar criminal propensity. A way must be found to protect society from the activities of these criminals and to me, this way is confinement for a considerable length of time. Appellant if he is mindful of reforming must do so while in prison.
We wholeheartedly agree with her Ladyship Rose Owusu JSC in her apt pronouncement about the need to keep those who have sworn not to give peace to their fellow men and women in this dear country of ours. The courts must strike a careful balance between being filled with the milk of human kindness and being firm in dealing with armed robbers who have upgraded their skills to terrorise and brutalise their victims with reckless abandon.
In this instant appeal, we disapprove of the conduct of the Appellant who himself a driver, lured the complainant into his den in order to rob him of his taxi cab with registration No. GC 2419-11. When the complainant tried to resist the robbery by shouting, the Appellant heartlessly slashed him in the hand and gleefully took the taxi away as a blood-tainted trophy. Luckily, the law caught up with him. We felt short of restoring the 25 years IHL given by the trial Circuit Court Judge, but which was reduced graciously to 20 years by the appellate High Court Judge. This being the case, the Appellant’s appeal is still born and same is hereby dismissed in its entirety. What this means is that the judgment of the appellate High Court dated the 31st day of July 2012 is hereby affirmed.